Opinion
1:23-CV-00042-SPB-RAL
01-29-2024
LAMONT CAESAR, Plaintiff v. SARGEANT KEMP, SUPERINTENDANT OBERLANDER, DEP SUPERINTENDENT MONGELLUZZO, FACILITY MANAGEMENT; DEP SUPERINTENDANT ADAMS, CENTRALIZED SERVICES; LIBRARIAN LAURA BLAKE, LIBRARIAN WINTERS, Defendants
SUSAN PARADISE BAXTER, United States District Judge.
REPORT AND RECOMMENDATION ON DEFENDANTS' PARTIAL MOTION TO DISMISS ECF NO. 19
RICHARD A. LANZILLO, Chief United States Magistrate Judge.
I. Recommendation
It is respectfully recommended that Defendants' motion to dismiss Plaintiffs official capacity claims for money damages and his Eighth Amendment claim against Defendants Kemp, Adams, Mongelluzzo, and Oberlander in their individual capacities (ECF No. 19) be GRANTED.
II. Report
Plaintiff Lamont Caesar, an individual in the custody of the Pennsylvania Department of Corrections (“DOC”), commenced this pro se action against six officials employed at the DOC's State Correctional Institution at Forest (“SCI Forest”)-Superintendent Oberlander, Deputy Superintendents Mongelluzzo and Adams, Sgt. Kemp, and Librarians Blake and Winters. Caesar's Complaint alleges that Kemp, Adams, Oberlander, and Mongelluzzo failed to protect him from the COVID-19 virus in violation of his Eighth Amendment rights, that Blake and Winters retaliated against him in violation of his First Amendment rights, and that Blake and Winters conspired to retaliate against him. See ECF No. 10. Caesar seeks redress of these alleged violations under 42 U.S.C. § 1983 and demands monetary and declaratory relief against each Defendant in his or her individual and official capacities. See id.
Caesar appended the following exhibits to the Complaint: two DOC Announcements re: Modified Schedule for Safety Measures dated 12/23/2020 and 12/10/2020; the modified schedule for 1/20/2020 to 1/6/2021; inmate request to staff member forms dated 1/20/2021, 1/26/2021, 3/30/2021, 7/26/2021, 8/2/2021, 4/13/2021; grievance records; Caesar's Temporary Job Assignment Notice dated 11/7/2020; DB Block Workers Schedule, effective 12/7/2020 and unit block workers, effective 3/15/2021; information on SCI-Forest's COVID-19 procedures; a Job Assignment Sheet dated 1/26/2022; two declarations of Ayodele Oke; excerpts from DC-ADM 816, Inmate Compensation Manual and DC ADM 804, Inmate Grievance System Procedures Manual; the declaration of Austin Smith; DOC Announcements re: Modified Schedule for Safety Measures dated 12/22/2020; and a work assignment. See ECF Nos. 2, 3,4. Caesar also appended a page of the 2017 Inmate Handbook to his brief in opposition. See ECF No. 22-1.
Defendants have moved to dismiss Caesar's claims against Kemp, Adams, Oberlander, and Mongelluzzo pursuant to Fed.R.Civ.P. 12(b)(6). See ECF No. 19. The motion has been fully briefed and is ripe for decision. See ECF Nos. 20,22.
The motion to dismiss does not challenge the First Amendment retaliation claim or civil rights conspiracy claim against Winters and Blake in their official capacities for declaratory relief and individual capacities for monetary relief. See ECF No. 20.
A. Material Facts
The following facts are summarized from Caesar's Complaint (ECF No. 10) and accepted as true for purposes of Defendants' motion to dismiss. Because Defendants' motion does not challenge the sufficiency of the claims against Blake and Winters in their individual capacities, the allegations relating solely to them are omitted.
During the COVID-19 pandemic, former DOC Secretary Wetzel ordered measures to limit the spread of the virus in DOC prisons. These measures included reducing inmate cohorts to eight people and implementing sanitation procedures and schedules within the prisons. ECF No. 10, ¶¶ 13-14. Caesar was informed that he would serve as one of eight block workers assigned “to sanitize the unit and highly frequented objects like phones, showers, kiosk, etc.” Id.,¶¶ 16-17.
On four occasions, December 24, December 28, December 30, 2020, and January 5, 2021, Caesar “was not let out to perform his work duties” because Sergeant Kemp determined that “he had it covered” or Caesar otherwise “wasn't needed.” Id., ¶¶ 19-33. On some or all of these occasions, other block workers also were not let out to perform their duties, which Caesar believed resulted in understaffmg and insufficient sanitization of surfaces. Id., ¶¶ 20-33. He repeatedly expressed this position to Kemp. Id.
On one occasion, December 24, 2020, an inmate “from the alpha pod” was brought to the “bravo pod” to help “collect meal trays.” Id., ¶ 21. Caesar informed Kemp that the cohort policy required inmates to stay within their own pods to limit inmates [sic] exposure to the virus and expressed concerns that such actions could result in his contracting the virus. Id., ¶ 23. Kemp replied, “you'll be fine,” “you've been watching too much CNN.” Id.
On January 5, 2021, Caesar told Kemp that he believed his actions were “in violation of the COVID schedule” and “putting [Caesar] at risk of catching the virus.” Id., ¶ 33 He also told Kemp that he had preexisting conditions-hypertension and high cholesterol-that put him at a heighted risk of complications if he were to contract the virus. Id., ¶ 34. On January 13, Caesar developed symptoms, and, on January 19, he was diagnosed with COVID-19. Id., ¶¶ 38-39. Five days later, Corrections Officer Jaimeson told Caesar that she had recently tested positive for the virus and had to quarantine at home. Caesar later learned that Unit Manager Brumagin had also recently tested positive and had quarantined as well. Caesar believes that the virus “contraction period” occurred in “mid-late December” because Jaimeson and Brumagin were “absent for a long period of time.” Id., ¶ 44.
Caesar grieved Kemp's conduct on January 13 (Grievance 912225) and January 20, 2021 (Grievance 912239). Caesar also filed a grievance against Oberlander, Mongelluzzo, and Adams for failing to adhere to the “heightened protocols in instances of suspected or confirmed [COVID-19] cases among staff/inmates” regarding Jaimeson and Brumagin's diagnoses. Id., ¶ 46.
B. Standard of Review
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the complaint. See Kost v. Kozakiewicz, 1 F.3d 176,183 (3d Cir. 1993). In deciding a motion to dismiss, the court must accept as true all factual allegations of the complaint and view them in a light most favorable to the plaintiff. See U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002). The court is not opining on whether the plaintiff is likely to prevail on the merits; rather, the plaintiff must only present factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007) (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-36 (3d ed. 2004)). See also Ashcroft v. Iqbal, 556 U.S. 662 (2009). A complaint should only be dismissed pursuant to Rule 12(b)(6) if it fails to allege “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570 (rejecting the traditional Rule 12(b)(6) standard established in Conley v. Gibson, 355 U.S. 41, 78 (1957)).
While a complaint need not include detailed factual allegations to survive a motion to dismiss, it must provide more than labels and conclusions. See Twombly, 550 U.S. at 555. A “formulaic recitation of the elements of a cause of action will not do.” Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). Moreover, a court need not accept inferences drawn by a plaintiff if they are unsupported by the facts as explained in the complaint. See California Pub. Employee Ret. Sys. v. The Chubb Corp., 394 F.3d 126,143 (3d Cir. 2004) (citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the court accept legal conclusions disguised as factual allegations. See Twombly, 550 U.S. at 555; McTernan v. City of York, Pennsylvania, 577 F.3d 521, 531 (3d Cir. 2009) (“The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.”). Thus, while the Court must view the factual allegations of the complaint at issue as true, it is “not compelled to accept unwarranted inferences, unsupported conclusions or legal conclusions disguised as factual allegations.” Baraka v. McGreevey, 481 F.3d 187, 211 (3d Cir. 2007).
Finally, because Caesar is proceeding pro se, his complaint will be held to “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520-521 (1972). If the court can reasonably read his pro se complaint to state a valid claim upon which relief can be granted, it will do so despite his confusion of legal theories, poor syntax and sentence construction, or unfamiliarity with pleading requirements. See Boag v. MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery v. Bierley, 141 F.2d 552, 555 (3d Cir. 1969).
C. Discussion
Defendants' motion raises three arguments in support of dismissal: (1) all Defendants are immune from the claims asserted against them in their official capacities; (2) the Complaint fails to state an Eighth Amendment claim based on failure to follow COVID-19 protocols, and (3) the facts alleged fail to support the personal involvement of Adams, Mongelluzzo, and Oberlander. Because it is dispositive of all claims against Defendants Kemp, Adams, Mongelluzzo, and Oberlander, the Court will first address Caesar's assertion that these Defendants violated his rights under Eighth Amendment.
1. The Complaint fails to state an Eighth Amendment Claim.
Caesar alleges that Kemp, Adams, Mongelluzzo, and Oberlander demed him his “rights to receive protection from an infectious disease (COVID-19) under the Eighth Amendment of the United States Constitution.” ECF No. 10, ¶ 1 (cleaned up). The Eighth Amendment's prohibition on cruel and unusual punishment imposes a duty on prison officials to take reasonable measures to guarantee the safety of inmates.” Hudson v. Palmer, 468 U.S. 517, 52627 (1984). To state a viable failure to protect claim, an inmate must plead facts sufficient to demonstrate: (1) that he was incarcerated under conditions posing a substantial risk of serious harm, id.; (2) that the prison official knew of and disregarded “an excessive risk to inmate health and safety,” Hill v. Patrick, 2008 WL 1752692, at *2 (W.D. Pa. 2008) (quoting Beers-Captiol v. Whetzel, 256 F.3d 120,133 (3d Cir. 2001)); and (3) the prison official's deliberate indifference caused the inmate to suffer harm, see Bistrian v. Levi, 696 F.3d 352, 367 (3d Cir. 2012).
Caesar asserts that Defendants' failure to initiate “enhanced protocol[s]” created conditions that led to him contracting COVID-19. ECF No. 10, ¶ 93. He avers that Kemp violated DOC policy when he prohibited Caesar and others from sanitizing their unit and caused cohorts to intermingle on December 24, 28, and 28,2020 and January 5, 2021. Caesar further avers that he repeatedly told Kemp that his conduct contravened DOC procedures and put him at risk of contracting the virus. Caesar appears to premise his Eighth Amendment claim against Adams, Oberlander, and Mongelluzzo on their supervisory roles. He avers that from his grievances, they knew of Kemp's misconduct and that two unit officers had COVID-19, and yet, they failed to institute enhanced protocols or “remedy or abate” the “obvious risks associated with the conditions their misconduct had created.” ECF No. ¶ 96. Defendants challenge the sufficiency of these allegations to support an Eighth Amendment violation.
Courts in this Circuit have consistently rejected inmate claims based on exposure to COVID-19 where the plaintiffs state correctional institution substantially complied with mitigation policies and procedures adopted by the DOC. See e.g, Engelund v. Doll, 2020 WL 1974389, at * 11 (M.D. Pa. Apr. 24, 2020) (“it cannot be said that Respondents have been deliberately indifferent to Petitioners' health, safety, or medical needs” because, “[a]lthough COVID-19 presents a serious medical issue, as detailed above, the facilities have taken significant steps to curb the introduction or spread of CO VID-19 and to contain and treat those infected with the virus”); Allen v. Wetzel, 2021 WL 2254997, at *7 (M.D. Pa. June 3, 2021) (DOC policies mitigating spread of COVID-19 sufficient to prevent deliberate indifference claim where Plaintiff contracted COVID-19 but did not experience any serious symptoms). In rejecting such claims, courts have frequently taken judicial notice of the DOC's mitigation policies and procedures because they are publicly available on a government website. See Allen, 2021 WL 2254997, at *6 (taking judicial notice of the DOC's COVID-19 mitigation policies). See also Bevins v. Kauffman, 2021 WL 322168, at *1 (M.D. Pa. Feb. 1, 2021) (noting that “DOC has provided publicly available information regarding its response to the COVID-19 pandemic”: https://wwwcor.pa.gov/PAges/COVID-19.aspx). Courts have observed that “[a] review of these steps suggests that DOC officials ... have not acted unreasonably with respect to the threat posed by COVID-19 and instead have instituted measures to safeguard the entire inmate population, including Plaintiff.” Bevins, 2021 WL 322168, at *5. Thus, an inmate's Eighth Amendment claim arising out of his or her contracting COVID-19 will fail as a matter of law based on the DOC's COVID-19 mitigation policies and procedures absent factual allegations that prison officials disregarded or materially deviated from them. See Williams v. PA. Dep't of Corr., 2023 WL 2655406, at *13 (W D. Pa. Feb. 2,2023), report and recommendation adopted sub nom. Williams v. PA Dep t of Corr., 2023 WL 2652298 (W.D. Pa. Mar. 27, 2023) (holding that inmate's second amended complaint failed to state an Eighth Amendment claim where it included “no factual allegations to support that any DOC Defendant deviated materially from any DOC COVID-19 mitigation protocols”).
The facts alleged in the Complaint do not support a plausible inference that Kemp, Adams, Mongelluzzo, or Oberlander materially deviated from the DOC's COVID-19 mitigation policies or procedures or that SCI-Forest experienced any significant outbreak of the virus. See White v. Wetzel, 2022 WL 3273807, at * 1 (3d Cir. Aug. 11, 2022) (prisoner stated a deliberate indifference to unsafe conditions of confinement claim where he alleged that prison officials materially deviated from DOC COVID-19 mitigation policies and procedures, which deviations resulted in a major outbreak of coronavirus infections at the prison and resulted in plaintiff contracting and becoming seriously ill and hospitalized with COVID-19). Sanitizing of surfaces is only one, and probably the least effective, of the measures adopted by the DOC to mitigate the spread of COVID-19. And Caesar does not allege that Kemp failed to conduct surface sanitation. Instead, he challenges the adequacy of the number of staff members Kemp deployed to do so on four occasions. He also challenges Kemp's decision to allow unit cohorts to intermingle on a few occasions. This conduct does not amount to a substantial deviation from COVID-19 protocols or deliberate indifference to inmate safety. See Conley v. Wetzel, 2023 WL 2649090, at *9-10 (W.D. Pa. Mar. 27, 2023), reconsideration denied sub nom. Conley v. Magoon, 2023 WL 3726888 (W.D. Pa. May 30, 2023)(“[E]ven accepting as true Conley's allegations that conditions at SCI-Mercer were not compliant at all times with guidance of the CDC specific to correctional and detention facilities, as well as the Pennsylvania Department of Health, and its own medical team, these allegations do not support a claim of deliberate indifference.”); Pumba v. Kowal, 2022 WL 2805520, at *4 (E.D. Pa. July 18, 2022) (rejecting claim based on a sergeant permitting a pod worker who tested positive to clean the plaintiff's cell without wearing a mask and presumably exposing him to COVID-19).
Because Caesar has failed to allege Kemp's material deviation from COVID-19 procedures, his allegations that the supervisory Defendants, Mongelluzzo, Adams, and Oberlander, knew of Kemp's conduct also fail to support an Eighth Amendment claim. Moreover, Caesar's allegations that these Defendants knew of Kemp's conduct are too scant to raise an inference of knowledge or acquiescence beyond mere speculation. Caesar also does not identify the “enhanced protocols” these Defendants allegedly failed to initiate. To the contrary, Caesar himself states that the infected staff members “w[ere] sent home to quarantine and were absent for a long period of time.” ECF No. 5,¶¶43,44. Caesar's allegations therefore also fail to support an inference that Adams, Oberlander, or Mongelluzzo acted with deliberate indifference to his health and safety in violation of the Eighth Amendment. See Jones v. County of Allegheny, 2022 WL 2806779, at *6 (W.D. Pa. June 24, 2022) (“Simply because the execution of COVID-19 protocols may have been nonoptimal at times, the alleged deficiencies fall well short of evidencing deliberate indifference by the named Defendants.).
Accordingly, the Eighth Amendment claims against Defendants Kemp, Adams, Mongelluzzo, and Oberlander should be dismissed.
2. All official capacity claims for money damages are barred by sovereign immunity.
Defendants contend that Eleventh Amendment immunity bars Caesar's official capacity claims for money damages. They are correct. The Eleventh Amendment proscribes actions for money damages in the federal courts against states, their agencies, and state officials acting in their official capacities. Laskaris v. Thornburgh, 661 F.2d 23 (3d Cir. 1981) (Pennsylvania); Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274 (1977) (state agencies); Edelman v. Jordan, 415 U.S. 651 (1974) (state employees acting in their official capacity). It is well-settled that “Pennsylvania has not waived its immunity from suit in federal court.” Toth v. California Univ, of Pennsylvania, 844 F.Supp.2d 611, 648 (W.D. Pa. 2012) (citing 42 Pa.C.S.A. § 8521(b)). Nor did Congress intend by the general language of Section 1983 to override the traditional sovereign immunity afforded to the states. Quern v. Jordan, 440 U.S. 332, 342-45 (1979); see also Toth, 844 F.Supp.2d at 648. The DOC, as an agency of the Commonwealth of Pennsylvania, and its agents and employees, are therefore entitled to Eleventh Amendment immunity for money damages. See Brown v. Smith, 2019 WL 2411749 (W.D. Pa. June 7, 2019).
Eleventh Amendment immunity does not extend to claims for money damages asserted against agents and employees of state agencies acting in their individual capacities. See e.g, Helfrich v. Com. of Pa., Dep't of Mil. Affs., 660 F.2d 88, 90 (3d Cir. 1981) (citing Scheuer v. Rhodes, 416 U.S. 232 (1974)). The Eleventh Amendment also does not provide immunity for claims for injunctive or declaratory relief. See Kentucky v. Graham, 473 U.S. 159, 169 n.18 (1985)). Thus, Eleventh Amendment immunity does not provide a basis to dismiss a § 1983 claim for money damages when it is asserted against state actors in their individual capacities or for injunctive of decalaratory relief when it is asserted agaist state actors in their official capacities. See id. (citing Pennjurst State School & Hospital v. Halderman, 465 U.S. 89 (1984), Ex parte Young, 209 U.S. 123 (1908)).
Caesar asserts a civil rights conspiracy claim and First and Eighth Amendment claims against DOC employees in their individual and official capacities. To the extent he seeks monetary relief against any Defendant in his or her official capacity, his claims are barred by the Eleventh Amendment and should be dismissed with prejudice.
3. The allegations of the Complaint also fail to support the personal involvement of Adams, Mongelluzo, and Oberlander.
Even if Caesar had alleged facts to support Kemp's material deviation from COVID-19 policies and procedures, his claims against the supervisory Defendants, Adams, Oberlander, and Mongelluzzo, would nevertheless fail. As Defendants correctly observe, a plaintiff pursuing a § 1983 claim “must show that each and every defendant was ‘personally] involve[d]' in depriving him of his rights.” Kirk v. Roan, 2006 WL 2645154, at *3 (M.D. Pa. 2006) (quoting Evancho v. Fischer, 423 F.3d 347, 353 (3d Cir. 2006)). Generally, “a supervising public official has [no] affirmative constitutional duty to supervise and discipline so as to prevent violations of constitutional rights by his or her subordinates.” Chinchello v. Fenton, 805 F.2d 126,133 (3d Cir. 1986); Brown v. Grabowski, 922 F.2d 1097, 1120 (3d Cir. 1990). But courts have identified two circumstances where the conduct of a supervisor or policymaker may constitute personal involvement in a constitutional violation sufficient to support his or her individual liability. First, supervisory liability may attach if the supervisor personally “participated in violating the plaintiffs rights, directed others to violate them, or, as the person in charge, had knowledge of and acquiesced” in a subordinate's unconstitutional conduct. A.M. ex rel. J.M.K. v. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004) (citing Baker v. Monroe Twp., 50 F.3d 1186,1190-91 (3d Cir. 1995)). However, “[a]llegations of participation or actual knowledge and acquiescence.. .must be made with appropriate particularity.” Rode v. Dellarciprete, 845 F.2d 1195, 1207-08 (3d Cir. 1988). Second, liability may attach if the supervisor, “with deliberate indifference to the consequences, established and maintained a policy, practice or custom which directly caused [the] constitutional harm.” Id. (quoting Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 725 (3d Cir. 1989)).
In this case, Caesar premises Oberlander, Adams, and Mongelluzzo's liability upon their “responsibility] for the initiation of enhanced protocols.” ECF No. 10, ¶¶ 98, 99,100. He contends that Defendants knew “there were positive staff cases on the unit” from his grievances, yet “no contact tracing was done” or “added protection implemented.” ECF No. 10, ¶ 83. The Complaint does not elaborate upon these vague allegations or support an inference that the supervisory Defendants' alleged failure to enact enhanced protocols caused Caesar harm.
Caesar's allegations against these Defendants primarily relate to their involvement in the grievance process, but a Defendant's role in the grievance process is insufficient to support a finding of personal involvement in actionable conduct. Indeed, courts have routinely dismissed civil rights claims against prison officials whose only involvement in the alleged violation stemmed from their participation in the grievance process. See Mearin v. Swartz, 951 F.Supp.2d 776, 782 (W.D. Pa. 2013). See also Mincy v. Chmielsewski, 508 Fed.Appx. 99,104 (3d Cir. 2013) (“[A]n officer's review of, or failure to investigate, an inmate's grievances generally does not satisfy the requisite personal involvement.”); Stevens v. Winger, 2021 WL 2075585, at *4 (W.D. Pa. May 24, 2021) (dismissing claims against prison health care administrator whose only awareness of the alleged misconduct was based on receipt of a grievance). Therefore, Caesar's § 1983 claims against Adams, Oberlander, and Mongelluzzo also fail based on their lack of personal involvement.
D. Leave to Amend
The Third Circuit has instructed that if a complaint is vulnerable to dismissal for failure to state a claim, the Court should permit a curative amendment unless an amendment would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). The Court may deny leave to amend where there is “undue delay, bad faith[,] or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of the amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962). And though “the grant or denial of an opportunity to amend is within the discretion of the District Court,” it may not “outright refusfe] to grant the leave without any justifying reason appearing for the denial.” Id. These instructions are equally applicable to pro se litigants and those represented by counsel. Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004). In this case, it would be futile to allow Caesar to amend his constitutional claims asserted against Defendants in their official capacities for monetary relief. However, Caesar may be able to cure certain of the Complaint's deficiencies of his Eighth Amendment claim.
Accordingly, all claims for money damages against the Defendants in their official capacities should be dismissed with prejudice, but his Eighth Amendment claim for monetary relief against Kemp, Adams, Mongelluzzo, and Oberlander in their individual capacities should be dismissed without prejudice and with leave to file an amended complaint regarding this claim within a specified time.
III. Conclusion
For the foregoing reasons, it is respectfully recommended that Defendants' partial motion to dismiss the Complaint (ECF No. 19) be GRANTED, and that (1) Caesar's official capacity claims for money damages be DISMISSED WITH PREJUDICE, (2) his Eighth Amendment claim against Kemp, Adams, Mongelluzzo, and Oberlander in their individual capacities be DISMISSED WITHOUT PREJUDICE and with leave to amend, and (3) if Caesar fails to file an amended complaint within the time allotted, the Court dismiss his Eighth Amendment claim with prejudice. For clarity of future proceedings, the undersigned notes that Caesar's retaliation and conspiracy claims against Blake and Winters in their individual capacities remain pending and unaffected by this Report and Recommendation.
IV. Notice
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72, the parties may seek review by the district court by filing Objections to the Report and Recommendation within fourteen (14) days of the filing of this Report and Recommendation. Any party opposing the objections shall have fourteen (14) days from the date of service of objections to respond thereto. See Fed.R.Civ.P. 72(b)(2). Failure to file timely objections may waive appellate rights. See Brightwell v. Lehman, 637 F.3d 187,194 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).